Volume 121, Issue 7
May 2012
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1584Richard M. Re & Christopher M. Re121 Yale L.J. 1584 (2012).
The Reconstruction Amendments are justly celebrated for transforming millions
of recent slaves into voting citizens. Yet this legacy of egalitarian enfranchisement had a flip side.
In arguing that voting laws should not discriminate on the basis of morally insignificant statuses,
such as race, supporters of the Reconstruction Amendments emphasized the legitimacy of
retributive disenfranchisement as a punishment for immoral actions, such as crimes. Former
slaves were not just compared with virtuous military veterans, as commentators have long
observed, but were also contrasted with immoral criminals. The mutually supportive
relationship between egalitarian enfranchisement and punitive disenfranchisement—between
voting and vice—motivated and shaped all three Reconstruction Amendments.
Counterintuitively, the constitutional entrenchment of criminal disenfranchisement facilitated
the enfranchisement of black Americans. This conclusion complicates the conventional
understanding of how and why voting rights expanded in the Reconstruction era.Criminal disenfranchisement’s previously overlooked constitutional history illuminates
four contemporary legal debates. First, the connection between voting and vice provides new
support for the Supreme Court’s thoroughly criticized holding that the Constitution endorses
criminal disenfranchisement. Second, Reconstruction history suggests that the Constitution’s
endorsement of criminal disenfranchisement extends only to serious crimes. For that reason,
disenfranchisement for minor criminal offenses, such as misdemeanors, may be
unconstitutional. Third, the Reconstruction Amendments’ common intellectual origin refutes
recent arguments by academics and judges that the Fifteenth Amendment impliedly repealed the
Fourteenth Amendment’s endorsement of criminal disenfranchisement. Finally, the historical
relationship between voting and vice suggests that felon disenfranchisement is specially
protected from federal regulation but not categorically immune to challenge under the Voting
Rights Act.
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1672Nathan S. Chapman & Michael W. McConnell121 Yale L.J. 1672 (2012).
From its conceptual origin in Magna Charta, due process of law has required that
government can deprive persons of rights only pursuant to a coordinated effort of separate
institutions that make, execute, and adjudicate claims under the law. Originalist debates about
whether the Fifth or Fourteenth Amendments were understood to entail modern “substantive
due process” have obscured the way that many American lawyers and courts understood due
process to limit the legislature from the Revolutionary era through the Civil War. They
understood due process to prohibit legislatures from directly depriving persons of rights,
especially vested property rights, because it was a court’s role to do so pursuant to established
and general law. This principle was applied against insufficiently general and prospective
legislative acts under a variety of state and federal constitutional provisions through the
antebellum era. Contrary to the claims of some scholars, however, there was virtually no
precedent before the Fourteenth Amendment for invalidating laws that restricted liberty or the
use of property. Contemporary resorts to originalism to support modern substantive due process
doctrines are therefore misplaced. Understanding due process as a particular instantiation of
separation of powers does, however, shed new light on a number of key twentieth-century cases
which have not been fully analyzed under the requirements of due process of law.
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1808Bruce E. Cain121 Yale L.J. 1808 (2012).
The new institutionalism in election law aims to lessen the necessity of court
intervention in politically sensitive election administration matters such as redistricting by
harnessing politics to fix politics. Many hope that independent citizen commissions (ICCs) will
improve the politics associated with drawing new district boundaries. As the recent round of
redistricting comes to a close, I offer some observations about ICCs as effective court
redistricting buffers. My basic points are as follows. Independent citizen commissions are the
culmination of a reform effort focused heavily on limiting the conflict of interest implicit in
legislative control over redistricting. While they have succeeded to a great degree in that goal,
they have not eliminated the inevitable partisan suspicions associated with political line-drawing
and the associated risk of commission deadlock. Additional political purity tests and more careful
vetting of the citizen commissioners are not the solution. I argue that ICCs in the future should
adopt a variation of New Jersey’s informal arbitration system as a means of reducing partisan
stakes and encouraging coalition building among stakeholders. -
1846Christopher S. Elmendorf & David Schleicher121 Yale L.J. 1846 (2012).
Most commentary on redistricting is concerned with fairness to groups, be they
racial, political, or geographic. This Essay highlights another facet of the redistricting problem:
how the configuration of districts affects the ability of low-information voters to secure
responsive, accountable governance. We show that attention to the problem of voter ignorance
can illuminate longstanding legal-academic debates about redistricting, and that it brings into
view a set of questions that deserve our attention but have received little so far. District designers
should be asking how alternative maps are likely to affect local media coverage of representatives,
as well as the “branding” strategies of political party elites. Bearing these questions in mind, we
offer some tentative suggestions for reform. -
1888Joseph Fishkin121 Yale L.J. 1888 (2012).
Does “one person, one vote” protect persons, or voters? The Court has never
resolved this question. Current practice overwhelmingly favors equal representation for equal
numbers of persons. Opponents charge, however, that this approach dilutes the “weight” of
some individual voters’ votes. This Essay examines what that might mean, and concludes that
there is no coherent individual interest in the “weight” of a vote. It argues that the one person,
one vote doctrine is really about something else: protecting the political power of numerical
groups. In light of this conclusion, the last section of this Essay explores whether the numerical
groups this doctrine protects ought to include all persons living in a jurisdiction, or only the
citizens of voting age.
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1912Barrett J. Anderson121 Yale L.J. 1912 (2012).
Courts have historically regulated the use of character in trials because of its
potential to prejudice juries. In order to regulate this type of proof, courts must be able to
recognize what is and is not character evidence, but past attempts to define character in the law
of evidence have been unsatisfactory. This Note proposes a new framework to help courts
unravel this age-old mystery. By considering legal scholarship in conjunction with psychological
research and employing common tools of statutory interpretation, this Note contends that proof
must have two components for it to be regulated by the character scheme in the Federal Rules of
Evidence: propensity and morality. It then explains the elements of each component under the
Federal Rules regime, examines several evidentiary examples drawn from real cases to illustrate
how courts would apply the proposed framework, and concludes by discussing the broader
implications of this new perspective on character evidence. -
1970Nicholas M. McLean121 Yale L.J. 1970 (2012).
This Note undertakes an empirical examination of U.S. enforcement actions under
the Foreign Corrupt Practices Act (FCPA) in order to explore the cross-national patterns
associated with the United States’ international antibribery enforcement. I investigate a number
of possible determinants of FCPA enforcement, including variation in the level of U.S. foreign
direct investment (FDI), cross-national variation in corruption levels, the level of foreign
regulatory and enforcement cooperation with the United States, and U.S. foreign policy
interests. I find that higher levels of U.S. FDI and higher levels of corruption are significantly
associated with increased FCPA enforcement, as is the presence of bilateral mechanisms of
enforcement cooperation. In contrast, other variables—including the level of foreign policy
alignment between the host nation and the United States—do not appear to be associated with
variation in FCPA enforcement. In addition, I find that cross-national variation in the number of
FCPA cases in a given country is much more closely associated with actual recorded experience
with corruption (as measured by cross-national survey instruments) than with more widely used
measures of corruption perceptions. Finally, I employ data on past enforcement actions to
generate a cross-national measure of the “FCPA enforcement-action intensity” of U.S. FDI, and I
consider the potential use of such an index as a measure of FCPA country risk.
121 Yale L.J. 2013 (2012).